Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Beginning with a comparison between the canon and secular legal systems, we have an in-depth investigation of the idea of legal existence, both in its possible autonomous configuration within the general context of the invalidity of the Canon Law act, and also in its specific application to Canon Sentence. After a synthesis of the positions which doctrine and jurisprudence have taken on the matter, the legal existence in the convergence of the judicial approach of Olis Robleda with the personalist phenomenology of Karol Wojtyla is identified. Within this convergence, the identification of a personalist subjectivity which implies the general breadth of the responsibilities of the faithful in ordering the judicial effects of their own actions, in such a way that in the Canon sentence also, because of legal power and the principle of procedural law, we recognize an act whose effects remain the responsibility of the sentencing judge.

Firstly, article 27.3 of the Constitution of Spain, 1978, is studied, in order to examine the reach and nature of the law it guarantees (that of parents to choose religious and moral education for their children in agreement with their convictions). Therefore some doctrinal stances are reviewed, fundamentally those particularly significant ones which were stated in the debates of the constituent Spanish Parliament. Secondly, we describe the models which, after the 1978 Constitution, have followed in the regulation of the teaching of Catholicism in public centers of education in Spain. The first of these models was that of the centrist governments, based, fundamentally, on choice between Religious Education or Ethics classes (although this choice was not available at all levels and stages of education). The Socialist governments tried out a first system in which the alternative to Religious education class was proctored study of the basic subjects on the school curriculum. This system was found to be unconstitutional by the Supreme Court in several legal sentences which are also analyzed. Therefore, a second system was tested in which the alternative was other activities which did not include study of the basic subjects. The third model has not been put into practice, because of the political ups and downs which occurred after the March 2004 elections. This model is stated in the regulation for development of the 2002 Ley Orgánica de Calidad de la Enseñanza (Organic Law on the Quality of Education), in which the most relevant change, which we consider correct, was that of withdrawal of the system of teaching alternative subjects, and the establishing of a choice between denominational or non-denominational religious studies.

The formula «Theology of (Canon) Law» has been used in the second half of the XX century by many different authors, and has caused confusion and ambiguity. In the climate of anti-juridical mistrust which accompanied the revision of the CIC, the suggestions of Pope Paul VI to consider Canon Law in a «theological» way were accepted by many authors as a chance to appropriate a generic formula, with frequent ideological use. Most of these developments lead back to the colleagues and disciples of K. Mörsdorf, who insisted on creating a «Theology of (Canon) Law» as the «foundation» of the legitimate presence of (Canon) Law within the Church seen as «communion» and guided by the charisma of the Spirit. There were further developments of the original line in later decades, amongst which we can find the latest anthropological and theological proposal of G. Ghirlanda, recently reinitiated by M. Visioli. Other authors, such as the philosopher F. D’Agostino and the Salesian D. Composta also took advantage of the opportunity. Nevertheless, the most problematic note is that of E. Corecco, who used the formula «Theology of (Canon) Law» to indicate what should really have been a «General Theory of Canon Law». This behavior, together with other «sensationalistic» suggestions such as the interpretation of the concept of Canon Law as ordinatio fidei instead of ordinatio rationis and the substitution in the Canonistics of the analogia entis for analogia fidei, cannot avoid the suggestion of a true «aporia»: either E. Corecco did this without realizing how far-reaching his own work was, or else what is reached is the final limits of adulteration. The possibility offered by the 2002 reform of canonical studies is —on the other hand— that of a «Theology of Canon Law» as a supra-disciplinary approach in methodology to the needed relationship between Theological Science and Canonical Science.

It has been said «nutrition is at the center of those processes by which a human group shows its identity and the otherness of those this otherness differentiates them from». This concept is of particular relevance with reference to the presence of Islam on European soil, and, more specifically, in Spain. The possibility of observing the dietary rules laid down by Islamic law becomes an important factor which shows the level of integration of the Islamic communities within the context of the socalled «transplanted Islam», that is, Islam as installed in Europe, principally due to migration. The problems begin when members of these communities pose demands such as, for example, the existence of menus without substances which are forbidden by their religion, in certain institutions whose work regime is designed following uniform parameters (schools, hospitals, penitentiaries, etc.). And we must not forget that the pretention to slaughter animals whose flesh can be eaten by Muslims may be in conflict with Spanish Health Legislation. These are just two of the questions dealt with in this article, which also analyses the way they are regulated in Article 14 of the 1992 Cooperation Agreement with the Spanish Islam Commission, the observance of which is also evaluated in the light of field work carried out over the last few years.

The civil liability of the diocesis for the behavior of its clergy has gained particular relevance in the last few years due to the cases of sexual abuse of children reported in the USA. The author poses the problem and presents the general Canon and State legislative framework for the right to payment of damages. He studies the Canon legislation on the crime of sexual abuse of children, and considers that the diocesis may be found to have vicarious civil liability for an offense committed by a clergyman attached to the diocesis, if such offense was committed by taking advantage of their position and if found guilty in eligendo and/or in vigilando. Regarding the analysis of State Legislation, it concentrates on Spanish law, with solutions which are similar to those of other countries in its cultural and geographical area. The author considers that it is fundamental, before applying state legislation, to understand the particular legal relationship between the diocesis and its clergy, as this is not a labor contract. He pays particular attention to the most recent jurisprudence, not only on child sexual offences committed by priests, but also in general, and finds that in most cases vicarious civil liability was not found and for this liability there must be a guilty verdict in eligendo and/or in vigilando.

On the occasion of the study of the fifth directive Principle for the revision of the CIC, a revision plan for the laws of the Church was suggested in the First General Assembly of the Synods of Bishops (1967): specifically, the question about whether only one Code should be written for the whole Church or whether it should only be valid for the Latin Church; and, in this case, if there should be a Code—or even, several— for the Eastern Catholic Churches. The discussion of this subject was not planned for this assembly: however the Synod could not avoid dealing with it. As a result of this discussion, the majority of the Synodal Fathers decided favourably on the convenience of promulgation of a fundamental or constitutional Law previous to other particular Codes or legislation belonging to the Latin or Eastern Churches, which would ensure legal unity on essential matters, thereby substantially confirming the future revision of the laws of the Church, passed by the Plenary Assembly of the Pontifical Commission for the revision of the CIC of November 1965: two Codes —Latin and Eastern— proceeded by a fundamental or constitutional Law.

In the first part of this lecture the author analyzes the insertion of affective immaturity among the factors that have an effect on the capacity for informed consent, in line with the Roman Rota jurisprudence in the period immediately following the Second Vatican Council. In the second part he evaluates the influence of affective immaturity on psychological faculties according to the legislative hypotheses of the c. 1095, nn. 2-3 of the CIC, always following the Rota jurisprudence. We can state that affective immaturity is relevant for nullity of marriage when the essential elements for informed consent are significantly altered, but not when it is simply a limitation of the development of personal maturity in correlation with the chronological age. Within this framework of research into internal freedom or choice the Rota jurisprudence does not yet pay enough attention to the difference between essential freedom (substantial) and true freedom.

Some authors have suggested that it would be opportune to change the favor iuris of Matrimony into a pretended favor libertatis of the person. In His address to the Roman Rota in 2004, Pope John Paul II gives His opinion on this error and resolves the apparent contradiction between the favor of Matrimony and personal freedom. The favor matrimonii does not answer to either the confessional principle of the State nor to concrete historical or social circumstances; neither can the presumption of validity be reduced. The favor matrimonii is based on the nature of the person, of Matrimony and of society, and constitutes an inspiring principle in all matrimonial legal order. On the other hand, the presumption of validity is more than a simple formal technique or a pure instrument of positive law: it also is based on the normality of what is real.

The problem with the form of the celebration of matrimony includes many issues which must be explained: firstly, the doctrine of the Catholic Church on matrimony together with its competence in this area; secondly, the idea of legal ordinance; and, finally, the form itself and the implications of inter- ordinance depending on the disciplines in force. If the contracting parties belong to different faiths, there is the problem of which rules must be obeyed, as the ceremony of matrimony can only be celebrated once. The rules of different faiths cannot be applied simultaneously. The statement of the validity of celebrated marriages, legal assurance and the suspension of argument between different legal ordinances depend on the solution to this problem. The form of the celebration of marriage is simply an ecclesiastical law; thus, the authorities may amend it: it can be abolished or, on the other hand, its obligatory nature can be increased. At the same time the form itself is extremely complex, as it has at least three necessarily related dimensions. These are the natural, sacramental and liturgical forms of the marriage rite. With reference to the case of the minister in an inter-ritual case, the most eminent authors do not agree. Some state that ritus sacer celebrated by a priest is essential; while others consider that the presence of a priest is not always necessary. The author of this article believes that this problem cannot be resolved according to the principles of legal science, and that an authentic interpretation formulated by a supreme legislator in favor of the presence of a priest ad validitatem is essential.